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TMI Blog1951 (11) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... he defendantappellant, stated to us at the outset that he would not dispute the validity or sufficiency of the notice to quit served upon his client, if on the facts of this case he is held to be a monthly tenant under the plaintiff in respect of the premises in suit. His contention, in substance, is that the defendant was at no point of time a monthly tenant under the plaintiff or his predecessor. There might have been, according to the learned Counsel, two tenancies for one year each for two successive periods, but on the expiry of the second yearly lease, which happened on 7th December, 1926, the defendant ceased to be a tenant and no fresh tenancy was created by holding over as is contemplated by section 116 of the Transfer of Property Act. As there was no holding over, there could not be any question of a monthly tenancy being brought into existence under the provision of section 116 of the Transfer of Property Act, and the present suit of the plaintiff having been admittedly brought more than 12 years after the determination of the second yearly lease, is barred by limitation under Article 139 of the Indian Limitation Act. The whole controversy in this appeal thus centres rou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed upon between the parties. It appears from the record that the selami money, amounting to ₹ 250, was paid by the defendant to the Receiver several months before the Kabuliyat was executed, and the rental amounting to ₹ 46 was paid for the first time on 8th of March, 1925. The next payment of rent was made in the succeeding year, on 16th of March, 1926. Admittedly, no further payment of rent was made by the lessee either to the Receiver or to the proprietor since then, up to this period. The High Court dismissed the appeal preferred by Pratap Chandra Deo Dhabal some time in 1924 and this order of dismissal was affirmed by the Judicial Committee in May 1927. The Receiver was then discharged and the plaintiff got possession of the entire estate in July 1927. On April 15, 1937, the plaintiff brought a suit for ejectment (being Title Suit No. 2 of 1937) against the defendant in respect of this property in the Court of the Subordinate Judge at Chaibassa. The claim was based substantially upon the terms of the Kabuliyat executed by the defendant on 24th of December, 1924, and the suit was, in fact, one for ejectment of a lessee on the expiration of the period provided fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judges affirmed the finding of the lower appellate court that the Prodhan's Patta did not create any rights in the defendant and that the Kabuliyat of 1924 was also ineffectual as a lease to give the defendant any tenancy right. The learned Judges further held that the defendant did not acquire any permanent right in the land by prescription or otherwise and that by reason of the payment of rent to the Receiver in the years 1925 and 1926 he became a tenant from month to month. In these circumstances the High Court concurred with the District Judge in holding that the notice to quit was insufficient for the purpose of determining the tenancy. It seems that the defendant made a strenuous endeavour before the High Court to establish that as the Patta of 1913 as well as the Kabuliyat of 1924 were both invalid and inoperative, he was never a tenant in respect of the land in suit and no tenancy could be created by the two payments of rent, inasmuch as the Receiver had no authority to receive them. It was contended, therefore, that the plaintiff was in possession of the land as a trespasser all along and thus acquired a good title by adverse possession. The High Court, though it held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that was served upon the defendant. On these pleadings a number of issues were framed. The trial judge held on a consideration of the materials placed before him that the Prodhan's Patta was a void and inoperative document and conferred no rights on the defendant. He negatived the case, which the defendant attempted to make in course of hearing, that the Kabuliyat executed by him was obtained by threat and coercion. It was held by the Subordinate Judge in accordance with the decisions of the Patna High Court on the point that the Kabuliyat could not operate as a lease under the Transfer of Property Act, and consequently the defendant did not acquire the rights of a lessee under the same. He held, however, that by payment and acceptance of rent a new tenancy was created de hors the Kabuliyat, and as the new tenancy was for building purposes, it. was a tenancy from month to month under section 106 Transfer of Property Act, terminable by fifteen days notice. As the notice was proper and, sufficient, the trial judge decreed the plaintiff's suit. Against this judgment, the defendant took an appeal to the court of the District Judge, Purulia, and the District Judge dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was that whatever view might be taken regarding these points, the defendant had no valid defence to the plaintiff's claim for eviction and consequently the decision of the courts below was right. It is the propriety of this decision that has been challenged before us in this appeal. Mr. Setalvad, in support of his client's case, has not called in aid the Prodhan's Patta of 1913; nor has he placed any reliance upon the Kabuliyat of 1924 and the covenant for renewal contained therein. He has not disputed before us that the payments made to the Receiver were in reality payments to the plaintiffs, and has conceded that a tenancy could be created by implication by reason of his client having paid and the Receiver having accepted rents in respect of the suit premises. His contention, as indicated already, is that by reason of the payment and acceptance of rent, there were two tenancies for one year each, created for two successive years; but the relationship of landlord and tenant between the parties came to an end on the expiration of the second annual lease. As there was no holding over by the defendant since then as contemplated by section 116, Transfer of Property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and we express no opinion on this point. Proceeding, therefore, on the assumption that even though the parties might have intended to create a lease for 10 years, no operative ]ease came into existence, the only facts admitted are that the defendant remained in possession of the land belonging to the plaintiff with the permission of the Receiver who represented the plaintiff's estate, and paid rent to the latter. From these facts a tenancy could be fairly presumed and the point for determination is, what was the duration of the tenancy that was created in the present case? Section 106 of the Transfer of Property Act lays down: In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of tenancy. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the payment of annual rent, and a stipulation like that would not come within the mischief of section 107 of the Transfer of Property Act. His contention is that the payment of an annual rent, as was made in the present case, is totally inconsistent with a monthly lease. We are not unmindful of the fact that in (1) Vide Debendra Nath v. Syama Prasanna, 11 C.W.N. 1124, certain reported cases, such inference has been drawn. One such case has been referred to by Mr.Justice Reuben in his judgment(Aziz Ahmad v. Alauddin Ahmad, A.I.R. 1933 Pat. 485), where reliance was placed upon an earlier decision of the Calcutta High CoUrt(3). A similar view seems to have been taken also in Matilal v. Darjeeling Municipality(3). But one serious objection to this view seems to be that this would amount to making a new contract for the parties. The parties here certainly did not intend to create a lease for one year. The lease was intended to be for a period exceeding one year, but as the intention was not expressed in the proper legal form, it could not be given effect to. It is one thing to say that in the absence of a valid agreement, the rights of the parties would be regulated by law in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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